United States v. Robinson

414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427, 1973 U.S. LEXIS 21, 66 Ohio Op. 2d 202

Opinions

Mr. Justice Rehnquist

delivered the opinion of the Court.

Respondent Robinson was convicted in United States District Court for the District of Columbia of the possession and facilitation of concealment of heroin in violation of 26 U. S. C. § 4704 (a) (1964 ed.), and 21 U. S. C. § 174 (1964 ed.). He was sentenced to concurrent terms of imprisonment for these offenses. On his appeal to the Court of Appeals for the District of Columbia Circuit, that court first remanded the case to the District Court for an evidentiary hearing concerning the scope of the search of respondent’s person which had occurred at the time of his arrest. 145 U. S. App. D. C. 46, 447 F. 2d 1215 (1971). The District Court made findings of fact and conclusions of law adverse to respondent, and he again appealed. This time the Court of Appeals en banc reversed the judgment of conviction, holding that the heroin introduced in evidence against respondent had been obtained as a result of a search which violated the Fourth Amendment to the United States Constitution. 153 U. S. App. D. C. 114, 471 F. 2d 1082 (1972). We granted certiorari, 410 U. S. 982 (1973), and set the case for argument together with Gustafson v. Florida, No. 71-1669, post, p. 260, also decided today.

On April 23, 1968, at approximately 11 p. m., Officer Richard Jenks, a 15-year veteran of the District of Columbia Metropolitan Police Department, observed the respondent driving a 1965 Cadillac near the intersection of 8th and C Streets, N. E., in the District of Columbia. Jenks, as a result of previous investigation following a check of respondent’s operator’s permit four days earlier, determined there was reason to believe that respondent was operating a motor vehicle after the revocation of his operator’s permit. This is an offense defined by statute in the District of Columbia which carries a mandatory minimum jail term, a mandatory minimum fine, or both. D. C. Code Ann. § 40-302 (d) (1967).

Jenks signaled respondent to stop the automobile, which respondent did, and all three of the occupants emerged from the car. At that point Jenks informed respondent that he was under arrest for “operating after revocation and obtaining a permit by misrepresentation.” It was assumed by the Court of Appeals, and is conceded by the respondent here, that Jenks had probable cause to arrest respondent, and that he effected a full-custody arrest.¹

In accordance with procedures prescribed in police department instructions,² Jenks then began to search respondent. He explained at a subsequent hearing that he was “face-to-face” with the respondent, and “placed [his] hands on [the respondent], my right-hand to his left breast like this (demonstrating) and proceeded to pat him down thus [with the right hand].” During this patdown, Jenks felt an object in the left breast pocket of the heavy coat respondent was wearing, but testified that he “couldn't tell what it was” and also that he “couldn’t actually tell the size of it.” Jenks then reached into the pocket and pulled out the object, which turned out to be a “crumpled up cigarette package.” Jenks testified that at this point he still did not know what was in the package:

“As I felt the package I could feel objects in the package but I couldn’t tell what they were. ... I knew they weren’t cigarettes.”

The officer then opened the cigarette pack and found 14 gelatin capsules of white powder which .he thought to be, and which later analysis proved to be, heroin. Jenks then continued his search of respondent to completion, feeling around his waist and trouser legs, and examining the remaining pockets. The heroin seized from the respondent was admitted into evidence at the trial which resulted in his conviction in the District Court.

The opinion for the plurality judges of the Court of Appeals, written by Judge Wright, the concurring opinion of Chief Judge Bazelon, and the dissenting opinion of Judge Wilkey, concurred in by three judges, gave careful and comprehensive treatment to the authority of a police officer to search the person of one who has been validly arrested and taken into custody. We conclude that the search conducted by Jenks in this case did not offend the limits imposed by the Fourth Amendment, and we therefore reverse the judgment of the Court of Appeals.

I

It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.

Examination of this Court’s decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched.

Because the rule requiring exclusion of evidence obtained in violation of the Fourth Amendment was first enunciated in Weeks v. United States, 232 U. S. 383 (1914), it is understandable that virtually all of this Court’s search-and-seizure law has been developed since that time. In Weeks, the Court made clear its recognition of the validity of a search incident to a lawful arrest:

“What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, §211; Wharton, Crim. Plead, and Practice, 8th ed., § 60; Dillon v. O’Brien and Davis, 16 Cox C. C. 245.” Id., at 392.

Agnello v. United States, 269 U. S. 20 (1925), decided 11 years after Weeks, repeats the categorical recognition of the validity of a search incident to lawful arrest:

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.” Id., at 30.

Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest — the permissible area beyond the person of the arrestee which such a search may cover — no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee. E. g., Carroll v. United States, 267 U. S. 132 (1925); Marron v. United States, 275 U. S. 192 (1927); Go-Bart Co. v. United States, 282 U. S. 344 (1931); United States v. Lefkowitz, 285 U. S. 452 (1932); Harris v. United States, 331 U. S. 145 (1947); Trupiano v. United States, 334 U. S. 699 (1948); United States v. Rabinowitz, 339 U. S. 56 (1950); Preston v. United States, 376 U. S. 364 (1964); Chimel v. California, 395 U. S. 752 (1969). In Chimel, where the Court overruled Rabinowitz and Harris as to the area of permissible search incident to a lawful arrest, full recognition was again given to the authority to search the person of the arrestee:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” 395 U. S., at 762-763.

Three years after the decision in Chimel, supra, we upheld the validity of a search in which heroin had been taken from the person of the defendant after his arrest on a weapons charge, in Adams v. Williams, 407 U. S. 143 (1972), saying:

“Under the circumstances surrounding Williams’ possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful.” Id., at 149.

Last Term in Cupp v. Murphy, 412 U. S. 291, 295 (1973), we again reaffirmed the traditional statement of the authority to search incident to a valid arrest.

Thus the broadly stated rule, and the reasons for it, have been repeatedly affirmed in the decisions of this Court since Weeks v. United States, supra, nearly 60 years ago. Since the statements in the cases speak not simply in terms of an exception to the warrant requirement, but in terms of an affirmative authority to search, they clearly imply that such searches also meet the Fourth Amendment’s requirement of reasonableness.

II

In its decision of this case, the Court of Appeals decided that even after a police officer lawfully places a suspect under arrest for the purpose of taking him into custody, he may not ordinarily proceed to fully search the prisoner. He must, instead, conduct a limited frisk of the outer clothing and remove such weapons that he may, as a result of that limited frisk, reasonably believe and ascertain that the suspect has in his possession. While recognizing that Terry v. Ohio, 392 U. S. 1 (1968), dealt with a permissible “frisk” incident to an investigative stop based on less than probable cause to arrest, the Court of Appeals felt that the principles of that case should be carried over to this probable-cause arrest for driving while one’s license is revoked. Since there would be no further evidence of such a crime to be obtained in a search of the arrestee, the court held that only a search for weapons could be justified.

Terry v. Ohio, supra, did not involve an arrest for probable cause, and it made quite clear that the “protective frisk” for weapons which it approved might be conducted without probable cause. Id., at 21-22, 24-25. This Court’s opinion explicitly recognized that there is a “distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.”

“The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U. S. 364, 367 (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U. S. 294, 310 (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search, even though it remains a serious intrusion.

"... An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person.” Id., at 25-26 (footnote omitted).

Terry, therefore, affords no basis to carry over to a probable-cause arrest the limitations this Court placed on a stop-and-frisk search permissible without probable cause.

The Court of Appeals also relied on language in Peters v. New York, 392 U. S. 40, 66 (1968), a companion case to Terry. There the Court held that the police officer had authority to search Peters because he had probable cause to arrest him, and went on to say:

“[T]he incident search was obviously justified 'by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.’ Preston v. United States, 376 U. S. 364, 367 (1964). Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects.” Id., at 67.

It is, of course, possible to read the second sentence from this quotation as imposing a novel limitation on the established doctrine set forth in the first sentence. It is also possible to read it as did Mr. Justice Harlan in his opinion concurring in the result:

“The second possible source of confusion is the Court’s statement that 'Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects.’ [392 U. S.], at 67. Since the Court found probable cause to arrest Peters, and since an officer arresting on probable cause is entitled to make a very full incident search, I assume that this is merely a factual observation. As a factual matter, I agree with it.” Id., at 77 (footnote omitted).

We do not believe that the Court in Peters intended in one unexplained and unelaborated sentence to impose a novel and far-reaching limitation on the authority to search the person of an arrestee incident to his lawful arrest. While the language from Peters was quoted with approval in Chimel v. California, 395 U. S., at 764, it is preceded by a full exposition of the traditional and unqualified authority of the arresting officer to search the arrestee’s person. Id., at 763. We do not believe that either Terry or Peters, when considered in the light of the previously discussed statements of this Court, justified the sort of limitation upon that authority which the Court of Appeals fashioned in this case.

Ill

Virtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta. We would not, therefore, be foreclosed by principles of stare decisis from further examination into history and practice in order to see- whether the sort of qualifications imposed by the Court of Appeals in this case were in fact intended by the Framers of the Fourth Amendment or recognized in cases decided prior to Weeks. Unfortunately such authorities as exist are sparse. Such common-law treatises as Blackstone’s Commentaries and Holmes’ Common Law are simply silent on the subject. Pollock and Maitland, in their History of English Law, describe the law of arrest as “rough and rude” before the time of Edward I, but do not address the authority to search incident to arrest. 2 F. Pollock & F. Maitland, The History of English Law 582 (2d ed. 1909).

The issue was apparently litigated in the English courts in Dillon v. O’Brien, 16 Cox C. C. 245 (Exch. Ireland, 1887), cited in Weeks v. United States, supra, There Baron Palles said:

“But the interest of the State in the person charged being brought to trial in due course necessarily extends, as well -to the preservation of material evidence of his guilt or innocence, as to his custody for the purpose of trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which a trial would be no more than an empty form. But if there be a right to production or preservation of this evidence, I cannot see how it can be enforced otherwise than by capture.” 16 Cox C. C., at 250.

Spalding v. Preston, 21 Vt. 9 (1848), represents an early holding in this country that evidence may be seized from one who is lawfully arrested. In Closson v. Morrison, 47 N. H. 482 (1867), the Court made the following statement:

“[W]e think that an officer would also be justified in taking from a person whom he had arrested for crime, any deadly weapon he might find upon him, such as a revolver, a dirk, a knife, a sword cane, a slung shot, or a club, though it had not been used or intended to be used in the commission of the offence for which the prisoner had been arrested, and even though no threats of violence towards the officer had been made. A due regard for his own safety on the part of the officer, and also for the public safety, would justify a sufficient search to ascertain if such weapons were carried about the person of the prisoner, or were in his possession, and if found, to seize and hold them until the prisoner should be discharged, or until they could be otherwise properly disposed of. Spalding v. Preston, 21 Vt. 9, 16.

“So we think it might be with money or other articles of value, found upon the prisoner, by means of which, if left in his possession, he might procure his escape, or obtain tools, or implements, or weapons with which to effect his escape. We think the officer arresting a man for crime, not only may, but frequently should, make such searches and seizures; that in many cases they might be reasonable and proper, and courts would hold him harmless for so doing, when he acts in good faith, and from a regard to his own or the public safety, or the security of his prisoner.” Id., at 484-485.

Similarly, in Holker v. Hennessey, 141 Mo. 527, 42 S. W. 1090 (1897), the Supreme Court of Missouri said:

"Generally speaking, in the absence of a statute, an officer has no right to take any property from the person of the prisoner except such as may afford evidence of the crime charged, or means'of identifying the criminal, or may be helpful in making an escape.” Id., at 539, 42 S. W., at 1093.

Then Associate Judge Cardozo of the New York Court of Appeals summarized his understanding of the historical basis for the authority to search incident to arrest in these words:

“The basic principle is this: Search of the person is unlawful when the seizure of the body is a trespass, and the purpose of the search is to discover grounds as yet unknown for arrest or accusation [citation omitted]. Search of the person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion.

“The distinction may seem subtle, but in truth it is founded in shrewd appreciation of the necessities of government. We are not to strain an immunity to the point at which human nature rebels against honoring it in conduct. The peace officer empowered to arrest must be empowered to disarm. If he may disarm, he may search, lest a. weapon be concealed. The search being lawful, he retains what he finds if connected with the crime.” People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923).

While these earlier authorities are sketchy, they tend to support the broad statement of the authority to search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this case. The scarcity of case law before Weeks is doubtless due in part to the fact that the exclusionary rule there enunciated had been first adopted only 11 years earlier in Iowa; but it would seem to be also due in part to the fact that the issue was regarded as well settled.³

The Court of Appeals in effect determined that the only reason supporting the authority for a full search incident to lawful arrest was the possibility of discovery of evidence or fruits.⁴ Concluding that there could be no evidence or fruits in the case of an offense such as that with which respondent was charged, it held that any protective search would have to be limited by the conditions laid down in Terry for a search upon less than probable cause to arrest. Quite apart from the fact that Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other, we find additional reason to disagree with the Court of Appeals.

The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. Agnello v. United States, 269 U. S. 20 (1925); Abel v. United States, 362 U. S. 217 (1960). The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.

Nor are we inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes.⁵ It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification.

But quite apart from these distinctions, our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.

IV

The search of respondent’s person conducted by Officer Jenks in this case and the seizure from him of the heroin, were permissible under established Fourth Amendment law. While thorough, the search partook of none of the extreme or patently abusive characteristics which were held to violate the Due Process Clause of the Fourteenth Amendment in Rochin v. California, 342 U. S. 165 (1952). Since it is the fact of custodial arrest which gives rise to the authority to search,⁶ it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed.⁷ Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as “fruits, instrumentalities, or contraband” probative of criminal conduct. Harris v. United States, 331 U. S., at 154-155; Warden v. Hayden, 387 U. S. 294, 299, 307 (1967); Adams v. Williams, 407 U. S., at 149. The judgment of the Court of Appeals holding otherwise is

Reversed.

1 The Court of Appeals noted that there was a difference in the presentation of the facts in the various proceedings that were conducted in the District Court. Counsel for respondent on appeal stressed that respondent had a record of two prior narcotics convictions, and suggested that Officer Jenks may have been aware of that record through his investigation of criminal records, while Jenks was cheeking out the discrepancies in the birthdates on the operator’s permit and on the Selective Service card that had been given to him for examination when he had confronted the respondent on the previous occasion. Respondent argued below that Jenks may have used the subsequent traffic violation arrest as a mere pretext for a narcotics search which would not have been allowed by a neutral magistrate had Jenks sought a warrant. The Court of Appeals found that Jenks had denied he had any such motive, and for the purposes of its opinion accepted the Government’s version of that factual question, since even accepting that version it still found the search involved to be unconstitutional. 153 U. S. App. D. C. 114, 120 n. 3, 471 F. 2d 1082, 1088 n. 3. We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that Jenks’ placing him in custody following that arrest was not a departure from established police department practice. See n. 2, infra. We leave for another day questions which would arise on facts different from these.

2 The Government introduced testimony at the evidentiary hearing upon the original remand by the Court of Appeals as to certain standard operating procedures of the Metropolitan Police Department. Sergeant Dennis C. Donaldson, a Metropolitan Police Department Training Division instructor, testified that when a police officer makes "a full custody arrest,” which he defined as one where an officer “would arrest a subject and subsequently transport him to a police facility for booking,” the officer is trained to make a full “field type search”:

“Q. Would you describe the physical acts the officer is instructed to perform with respect to this field search in a full custody arrest situation?

“A. (Sgt. Donaldson). Basically, it is a thorough search of the individual. We would expect in a field search that the officer completely search the individual and inspect areas such as behind the collar, underneath the collar, the waistband of the trousers, the cuffs, the socks and shoes. Those are the areas we would ask a complete thorough search of.

“Q. What are the instructions in a field type search situation when an officer feels something on the outside of the garment?

“A. If it is a full custody arrest and he is conducting a field search, we expect him to remove anything and examine it to determine exactly what it is.

“THE COURT: That is a full custody arrest. What is the last part of it?

“THE WITNESS: In conducting a field search, which is done any time there is a full custody arrest, we expect the officer to examine anything he might find on the subject.

“THE COURT: Would he do the same thing in a pat-down search?

“THE WITNESS: If he could determine in his pat-down or frisk by squeezing that it was not, in fact, a weapon that could be used against him, then we don’t instruct him to go further.

“THE COURT: But in a field search, even though he may feel something that he believes is not a weapon, is he instructed, to take it out?

“THE WITNESS: Yes, sir.”

Sergeant Donaldson testified that officers are instructed to examine the “contents of all of the pockets” of the arrestee in the course of the field search. It was stated that these standard operating procedures were initiated bjr the police department “ [primarily, for [the officer’s] own safety and, secondly, for the safety of the individual he has placed under arrest and, thirdly, to search for evidence of the crime.” While the officer is instructed to make a full field search of the person of the individual he arrests, he is instructed, and police department regulations provide, that in the case of a full-custody arrest for driving after revocation, "areas beyond [the arrestee’s] immediate control should not be searched because there is no probable cause to believe that the vehicle contains fruits, instrumentalities, contraband or evidence of the offense of driving after revocation.” Those regulations also provide that in the case of some traffic offenses, including the crime of operating a motor vehicle after revocation of an operator’s permit, the officer shall make a summary arrest of the violator and take the violator, in custody, to the station house for booking. D. C. Metropolitan Police Department General Order No. 3, series 1959 (Apr. 24, 1959).

Such operating procedures are not, of course, determinative of the constitutional issues presented by this case.

3 See T. Taylor, Two Studies in Constitutional Interpretation 44-45 (1969).

Taylor suggests that there “is little reason to doubt that search of an arrestee’s person and premises is as old as the institution of arrest itself.” Id., at 28. “Neither in the reported cases nor the legal literature is there any indication that search of the person of an arrestee, or the premises in which he was taken, was ever challenged in England until the end of the nineteenth century . . . [and] the English courts gave the point short shrift.” Id., at 29.

4 Where the arrest is made for a crime for which it is reasonable to believe that evidence exists, the Court of Appeals recognizes that “warrantless intrusion into the pockets of the arrestee to discover such evidence is reasonable under the 'search incident’ exception.” 153 U. S. App. D. C., at 127, 471 F. 2d, at 1095. The court then states that the officer may use this “reasonable [evidentiary] intrusion” to simultaneously look for weapons. Ibid.

5 Such an assumption appears at least questionable in light of the available statistical data concerning assaults on police officers who are in the course of making arrests. The danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest. One study concludes that approximately 30% of the shootings of police officers occur when an officer stops a person in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J. Crim. L. C. & P. S. 93 (1963), cited in Adams v. Williams, 407 U. S. 143, 148 (1972). The Government in its brief notes that the Uniform Crime Reports, prepared by the Federal Bureau of Investigation, indicate that a significant percentage of murders of police officers occurs when the officers are making traffic stops. Brief for the United States 23. Those reports indicate that during January-March 1973, 35 police officers were murdered; 11 of those officers were killed while engaged in making traffic stops. Ibid.

6 The opinion of the Court of Appeals also discussed its understanding of the law where the police officer makes what the court characterized as “a routine traffic stop,” i. e., where the officer would simply issue a notice of violation and allow the offender to proceed. Since in this case the officer did make a full-custody arrest of the violator, we do not reach the question discussed by the Court of Appeals.

7 The United States concedes that “in searching respondent, [Officer Jenks] was not motivated by a feeling of imminent danger and was not specifically looking for weapons.” Brief for the United States 34. Officer Jenks testified, “I just searched him [Robinson], I didn't think about what I was looking for. I just searched him.” As previously noted, Officer Jenks also testified that upon removing the cigarette package from the respondent’s custody, he was still unsure what was in the package, but that he knew it was not cigarettes.